Iss acon2010 tomhave-navetta-final

Legally Defensible, Proactively Protected
David Navetta, Esq., CIPP
Benjamin Tomhave, MS, CISSP

Founding Partner, InfoLawGroup LLP
Co-Chair, ABA Information Security Committee
Certified Information Privacy Professional (through IAAP)

Ben Tomhave, MS, CISSP
Gemini Security Solutions
MS Engineering Mgmt (InfoSec Mgmt)
Co-Vice Chair, ABA ISC
~15 yrs (AOL, WF, E&Y, INS/BT, ICSA Labs)

“ Just the Facts”
Not if, but when
Mounting legal costs
Increasing regulatory burden
SECURITY PROS WILL HAVE TO DEFEND THEIR DECISIONS IN A FOREIGN REALM: the legal world

The Gap is Acute
Collision of the legal and information security worlds
More regulations, more lawsuits, more contract obligations
Making decisions that have legal implications and interpreting legal requirements
Conversation is lacking or non-existent

Multiple Legal Regimes
State, Federal, International (e.g. E.U.)
Evolving & Overlapping laws, jurisdictions
Regulator / private enforcement
Contract law
Tort law
Securities law

Legal Defensibility
Viewing requirements from an external legal perspective (plaintiff, judge, jury, regulator)
Security choices become legal positions
Security decision-making process with legal baked in
The goal is to anticipate reasonably foreseeable (legal) consequences and reduce legal risks

Using Legal Defensibility...
Key Attributes
Real-World Examples
Recommended Steps
Action Plan

Sidebar: LegDef Origins
Survivability
Defensibility
Recoverability
Resilience
How to codify?

Key Attributes
Risk Management
Awareness, Understanding, Translation
Collaboration
Documentation of... decision-making processes ... key infosec decisions with potential for legal impact .
Attorney-client privilege

Real-World Examples
HHS: investigations v. actions http://www.hhs.gov/ocr/privacy/hipaa/enforcement/data/historicalnumbers.html#seventh
Online banking
Shames-Yeakel v. Citizens Financial Bank
EMI v. Comerica
Guin v. Brazos Higher Education Service Corp. Inc.

PCI Interpretative Variances
12.8 If cardholder data is shared with service providers , maintain and implement policies and procedures to manage service providers, to include the following:
12.8.1 Maintain a list of service providers.
12.8.2 Maintain a written agreement that includes an acknowledgement that the service providers are responsible for the security of cardholder data the service providers possess.
12.8.3 Ensure there is an established process for engaging service providers including proper due diligence prior to engagement
12.8.4 Maintain a program to monitor service providers’ PCI DSS compliance status.

Security v. Legal Viewpoint PCI SECURITY VIEWPOINT V. LEGAL VIEWPOINT

Key Legal Issues
“ Reasonable” “Appropriate” “Comprehensive” “Adequate”
Risk-based factors
Size, scope, type, complexity of organization
Nature and scope of activities
Resources of company
Sensitivity of data
Volume of data
Third-party security assessments – matching risk tolerance

Key Legal Issues
What legal obligations?
Interpretation by courts/regulators
Foreseeability!
Plaintiff attorney strategies
Litigation strategy and procedure

Examples of Legal Obligations
Security “standards” under the law
Contract obligations
Service providers and outsourcing
Document retention and preservation

Indicia of Legal Compliance
Risk analysis and remediation
Comply with own policies
Misrepresentations
Specific controls
Vendor management
Compliance with standards

Recommended Steps
A champion arises!
Find your allies
Perform analysis
Create your strategy
Execute (w/ documentation!)

Action Plan
Hold key stakeholder meeting(s) and collaboration
Conduct information security legal audit
What legal requirements apply?
Do current security measures address those legal requirements?

Action Plan
Conduct legal defensibility analysis:
Develop security decision process formally incorporating legal analysis
Address areas of non-compliance
Develop legal positions on high risk legal requirements
Develop legal positions for “gray area” legal requirements

Action Plan
Memorialize positions and proof:
Document indicia of legal compliance (e.g. identify standards compliant with, documentation of due diligence, etc.)
Document applicable legal positions under attorney-client privilege

Q & A THANK YOU!

Contact Information
www.infolawgroup.com
[email_address]
Benjamin Tomhave, MS, CISSP
geminisecurity.com
[email_address]

Iss acon2010 tomhave-navetta-final

by djnavetta

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